SPEED MARKETING®/TERMS OF USE
1. ACCEPTANCE OF TERMS
The use of Speed Marketing® is subject to the following
Terms of Use ("TOU"). Bell Litho Inc. (“Provider”) reserves the right
to update the TOU at any time without notice. The most current version of the
TOU can be reviewed by clicking on the "Terms of Use" hypertext link
located at the bottom of our Web pages.
The right to use Speed Marketing® is personal to User
and any Permitted Password User is not transferable to any other person or entity.
User and Permitted Password User are responsible for all use of User's or
Permitted Password User’s Account (under any screen name or password) and for
ensuring that all use of User's or Permitted Password User’s Account complies
fully with the provisions of this Agreement and Ancillary Agreements. User and
Permitted Password User shall solely be responsible for protecting the
confidentiality of User's and Permitted Password User’s password(s), if any.
Provider shall have the right at any time to change or discontinue
any aspect or feature of Speed Marketing®, including, but not limited
to, content, hours of availability, and equipment needed for access or use. Any
misuse of the Speed Marketing® or violation of any agreement with Provider
will result in the immediate termination of User’s or Permitted Password User’s
right to access Speed Marketing®.
For purposes of this Agreement, “User” shall refer to the Company
contracting with Speed Marketing®. Permitted Password User shall refer to any
party allowed to use Speed Marketing®, as well as any anyone or any entity
using Speed Marketing® without proper authorization.
Provider shall retain all right and title to Speed Marketing®, and
any use of Speed Marketing® or modification thereof, will not confer any right,
title or interest in or to Speed Marketing®. The use granted herein
is deemed, for all intents and purposes, a non-exclusive, non-transferable,
limited license to use Speed Marketing® within the United States.
Any software created for the use of User or Permitted Password
User to utilize any aspect of Speed Marketing® shall not be considered work for
hire and shall remain the sole property of Provider. User and
Permitted Password User shall be granted a non-exclusive, non-transferable, limited
license to use the product created.
2. EQUIPMENT
User shall be
responsible for obtaining and maintaining all telephone, computer hardware,
software and other equipment needed for access to and use of Speed
Marketing®. Provider is not responsible for any damage to or
malfunction caused by any employee or agent of Provider or the use
of Speed Marketing® and any software provided by a third party provider.
3. USER AND PERMITTED
PASSWORD USER CONDUCT
A. User and Permitted Password User shall use Speed
Marketing® for lawful purposes only. User and Permitted Password User shall not
post or transmit through Speed Marketing® any material which violates
or infringes in any way upon the rights of others, or which is unlawful, threatening,
abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene,
profane or otherwise objectionable, which encourages conduct that would
constitute a criminal offense, gives rise to civil liability or otherwise
violates any law.
B. Speed Marketing® contains copyrighted
material, trademarks and other proprietary information, including, but not
limited to, text, software, photos, video, graphics, music and sound, and the
entire contents of Speed Marketing® are copyrighted as a collective
work under the United States copyright laws and patented under patent numbers
US 7,268,896 B2; US 7,716,735 B2; US 7,554,681 B2, US 7,814,560 B2 and US
8,928,932 B2. Provider owns a copyright in the selection, coordination,
arrangement and enhancement of such content, as well as in the content original
to it. User and Permitted Password User may not modify, publish, transmit,
participate in the transfer or sale, create derivative works, or in any way
exploit any of the content, in whole or in part without Provider’s express
written approval. User and Permitted Password User may download copyrighted
material for User's or Permitted Password User’s use only as contemplated under
the Speed Marketing® Agreement entered into between User and Provider. Except
as otherwise expressly permitted under copyright law, no copying,
redistribution, retransmission, publication or commercial exploitation of
downloaded material will be permitted without the express written permission of
Provider. In the event of any permitted copying, redistribution or publication
of copyrighted material, no changes in or deletion of author attribution,
trademark legend or copyright notice shall be made. User and Permitted Password
User acknowledge that they do not acquire any ownership rights by downloading
copyrighted material or in any software or templates created for their use and
all shall remain the exclusive property of Provider or the designated
authorized third party.
C. User and Permitted Password User shall not
upload, post or otherwise make available on Speed Marketing® any
material protected by copyright, trademark or other proprietary right without
the express written permission of the owner of the copyright, trademark or
other proprietary right and the burden of determining that any material is not
protected by copyright rests with User and Permitted Password User. User and
Permitted Password User shall be solely liable for any damage resulting from
any infringement of copyrights, proprietary rights, or any other harm resulting
from such a submission. By submitting material to any public area of Speed
Marketing®, User and Permitted Password User automatically grants, or warrants
that the owner of such material has expressly granted Provider the
royalty-free, perpetual, irrevocable, non-exclusive right and license to use,
reproduce, modify, adapt, publish, translate and distribute such material (in
whole or in part) worldwide and/or to incorporate it in other works in any
form, media or technology now known or hereafter developed for the full term of
any copyright that may exist in such material. User and Permitted Password User
also permit any other user to access, view, store or
reproduce the material for that User or Permitted Password User’s purposes.
User and Permitted Password User hereby grant Provider the right to edit, copy,
publish and distribute any material made available on Speed
Marketing® by User or Permitted Password User and agree to fully indemnify
Provider from any liability incurred thereby without limitation.
D. The foregoing provisions are for the benefit of
Provider, its subsidiaries, affiliates, employees, agents and its third party
content providers and licensors and each shall have the right to assert and
enforce such provisions directly and on its own behalf. All liabilities and
obligations of User and Permitted Password User are joint and several.
4. USE OF COMMUNICATION SERVICES
Speed
Marketing® may contain document libraries, image libraries, publication
libraries, administration libraries, email services, bulletin board services,
chat areas, news groups, forums, communities, personal web pages, calendars,
photo albums, file cabinets and/or other message or communication facilities
designed to enable User and Permitted Password User to communicate
with others (each a "Communication Service" and collectively
"Communication Services"). User and Permitted Password
User agree to use the Communication Services only to post, send and
receive messages and material that are proper and, when applicable, related to
the particular Communication Service. By way of example, and not as a
limitation, User and Permitted Password User agree that when using
the Communication Services, User and Permitted Password User will
not:
§ Use the Communication Services in
connection with unlawful contests, pyramid schemes, chain letters, junk email,
spamming or any duplicative or unsolicited messages (commercial or otherwise).
§ Defame abuse, harass, stalk, threaten or
otherwise violate the legal rights (such as rights of privacy and publicity) of
others.
§ Publish post, upload, distribute or
disseminate any inappropriate, profane, defamatory, obscene, indecent or
unlawful topic, name, material or information.
§ Upload, or otherwise make available, files
that contain images, photographs, software or other material protected by
intellectual property laws, including, by way of example, and not as
limitation, copyright or trademark laws (or by rights of privacy or publicity)
unless User or Permitted Password User owns or controls the rights thereto or
has received all necessary consent to do the same.
§ Use any material or information, including
images or photographs, which are made available through the Services in any
manner that infringes any copyright, trademark, patent, trade secret, or other
proprietary right of any party.
§ Upload files that contain viruses,
spyware, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any
other similar software or programs that may damage the operation of another's
computer or property of another.
§ Advertise or offer to sell or buy any
goods or services for any business purpose, unless such Communication Services
and applicable law specifically allow such messages.
§ Download any file posted by another user
of a Communication Service that User or Permitted Password User knows, or
reasonably should know, cannot be legally reproduced, displayed, performed,
and/or distributed in such manner.
§ Falsify or delete any copyright management
information, such as author attributions, legal or other proper notices or
proprietary designations or labels of the origin or source of software or other
material contained in a file that is uploaded.
§ Violate any code of conduct or other
guidelines which may be applicable for any particular Communication Service.
§ Violate any applicable laws or
regulations.
§ Create a false identity for the purpose of
misleading others.
§ Use, download or otherwise copy, or
provide (whether or not for a fee) to a person or entity any directory of users
of the Services or other user or usage information or any portion thereof for
personal gain.
Provider has no obligation to monitor the Communication
Services. However, Provider reserves the right to review materials posted to
the Communication Services and to remove any materials without notice. In its
sole discretion, Provider reserves the right to terminate User’s or Permitted
Password User access to any or all of the Communication Services at any time,
without notice, for any reason whatsoever. Provider reserves the right at all
times to disclose any information as it deems necessary to satisfy any
applicable law, regulation, legal process or governmental request; provided
that notice is given to User or Permitted Password User unless otherwise
prohibited, or to edit, refuse to post or to remove any information or
materials, in whole or in part, if Provider, in its sole discretion, deems
said information or materials to be in violation of the terms of this Agreement
or an Ancillary Agreement.
Materials uploaded to the Communication Services may be subject to
posted limitations on usage, reproduction and/or dissemination. User and
Permitted Password User are responsible for adhering to such limitations if
User or Permitted Password User downloads the materials. Any private, protected
or personally identifiable information posted in any Communication Service is
at the User’s or Permitted Password User’s sole risk.
Provider does not control or endorse the content, messages or
information found in any Communication Service and, therefore, Provider
specifically disclaims any liability with regard to the Communication Services
and any actions resulting from User’s or Permitted Password User’s
participation in any Communication Services. Managers and hosts are not
authorized Provider spokespersons, and their views do not necessarily reflect
those of the Provider.
5. USER ACCOUNT, PASSWORD, AND SECURITY
If any of the Communication Services requires User or Permitted
Password User to open an account, User or Permitted Password User must complete
the registration process by providing Provider with current, complete and
accurate information as prompted by the applicable registration form. User and
Permitted Password User is entirely responsible for maintaining the
confidentiality of User’s and Permitted Password User’s password and account
and any and all activities that occur under User’s or Permitted Password User’s
account. User and Permitted Password User agree to notify Provider immediately
of any unauthorized use of User’s or Permitted Password User’s account or any
other breach of security. Provider will not be liable for any loss that User or
Permitted Password User may incur as a result of someone else using User’s or
Permitted Password User password or account, either with or without User’s or
Permitted Password User’s knowledge. However, User and Permitted Password User
will be held liable for losses or damages, incurred by Provider or another
party due to someone else using User’s or Permitted Password User’s account or
password. User or Permitted Password User may not use anyone else's account at
any time, without the permission of the account holder.
6. NOTICE SPECIFIC TO SOFTWARE AVAILABLE ON THIS
WEBSITE
Any software that is made available from the Communication Services
("Software") is the copyrighted work of Provider and/or its suppliers
or affiliates or third party licensors. Use of the Software is governed by the
terms of the end user license agreement, if any, which accompanies or is
included with the Software ("License Agreement").
7. NOTICE SPECIFIC TO DOCUMENTS AVAILABLE ON THIS
WEBSITE
Any use of any documentation or images from the Communication
Services must contain the following:
BELL LITHO, INC. AND/OR ITS RESPECTIVE SUPPLIERS, THIRD PARTY
PROVIDERS OR AFFILIATES MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE
INFORMATION OR IMAGE CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED
AS PART OF THE COMMUNICATION SERVICES FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND
RELATED GRAPHICS ARE PROVIDED "AS IS" WITH FAULT, WITHOUT WARRANTY OF
ANY KIND. BELL LITHO, INC. AND/OR ITS RESPECTIVE SUPPLIERS, THIRD PARTY
PROVIDERS OR AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH
REGARD TO THIS INFORMATION, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT. IN NO EVENT SHALL BELL LITHO, INC. AND/OR ITS RESPECTIVE
SUPPLIERS, THIRD PARTY PROVIDERS OR AFFILIATES BE LIABLE FOR ANY DAMAGES
HOWSOEVER ARISING, INCLUDING BUT NOT LIMITED TO, ACTUAL, SPECIAL, INDIRECT,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS
OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER
TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF
INFORMATION AVAILABLE FROM THE SPEED MARKETING® COMMUNICATION
SERVICES OR VIOLATION OF ANY USER OR PERMITTED PASSWORD USER OF SERVICES.
THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE SPEED
MARKETING® COMMUNICATION SERVICES COULD INCLUDE TECHNICAL INACCURACIES OR
TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN.
PROVIDER AND/OR ITS RESPECTIVE AFFILIATES, THIRD PARTY PROVIDERS OR SUPPLIERS
MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT(S) AND/OR THE PROGRAM(S)
DESCRIBED HEREIN AT ANY TIME.
IN NO EVENT WILL BELL LITHO, INC’S LIABILITY (INCLUDING THAT OF
ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS) ARISING
OUT OF OR RELATED TO THE FOREGOING USE EXCEED $25,000 EVEN IF THE FOREGOING
LIMITATION AND EXCLUSION ARE NOT ALLOWED TO THE FULLEST EXTENT IN ANY
APPLICABLE JURISDICTION.
8. MATERIALS PROVIDED TO SPEED MARKETING®, OR
POSTED AT ANY OF ITS WEBSITES
Provider does not claim ownership of the materials User or
Permitted Password User provides to Provider (including feedback and
suggestions) or post, upload, input or submit to any Communication Services or
its associated services for review by the general public, or by the members of
any public or private community, (each a "Submission" and
collectively "Submissions"). However, by posting, uploading,
inputting, providing or submitting ("Posting") User’s or Permitted
Password User’s Submission, User or Permitted Password User is granting
Provider, its affiliated companies and necessary sub-licensees permission to
use User’s or Permitted Password User’s Submission in connection with the
operation of their Internet and printing businesses (including, without
limitation, all Speed Marketing® Communication Services), including,
without limitation, the license rights to: copy, distribute, transmit, publicly
display, publicly perform, reproduce, edit, translate and reformat User’s or
Permitted Password User’s Submission; to publish User’s or Permitted Password
User’s name in connection with User’s or Permitted Password User’s Submission;
and the right to sublicense such rights to any supplier of the Communication
Services. No compensation will be paid with respect to the use of User’s or
Permitted Password User’s Submission, as provided herein. Provider is under no
obligation to post or use any Submission User or Permitted Password User may
provide and Provider may remove any Submission at any time in its sole
discretion. By posting a Submission, User or Permitted Password User warrants
and represents to own or otherwise control all of the rights to User’s or
Permitted Password User’s Submission as described in these TOU including,
without limitation, all the rights necessary for User or Permitted Password User
to provide, post, upload, input or submit the Submissions.
In addition to the warranty and representation set forth above, by
posting a Submission that contains images, photographs, pictures or that are
otherwise graphical in whole or in part ("Images"), User and
Permitted Password User warrant and represent that (a) User or Permitted
Password User is the copyright owner of such Images, or that the copyright
owner of such Images has granted User or Permitted Password User permission to
use such Images or any content and/or images contained in such Images
consistent with the manner and purpose of User’s or Permitted Password User’s
use and as otherwise permitted by these Terms of Use and the Communication
Services, (b) User or Permitted Password User has the rights necessary to grant
the licenses and sublicenses described in these TOU, and (c) that each person
depicted in such Images, if any, has provided consent to the use of the Images
as set forth in these TOU, including, by way of example, and not as a
limitation, the distribution, public display and reproduction of such Images.
By posting Images, User is granting (a) to all members of User’s private
community (for each such Images available to members of such private
community), and/or (b) to the general public (for each such Images available
anywhere on the Communication Services, other than a private community),
permission to use User’s or Permitted Password User’s Images in connection with
the use, as permitted by these Terms of Use, of any of the Services,
(including, by way of example, and not as a limitation, making prints and gift
items which include such Images), and including, without limitation, a
non-exclusive, world-wide, royalty-free license to: copy, distribute, transmit,
publicly display, publicly perform, reproduce, edit, translate and reformat
User’s or Permitted Password User’s Images without having User’s or Permitted
Password User’s name attached to such Images, and the right to sublicense such
rights to any supplier of the Services. The licenses granted in the preceding
sentences for all Images will terminate at the time User or Permitted Password
User completely removes such Images from the Communication Services, provided
that such termination shall not affect any licenses granted in connection with
such Images prior to the time User or Permitted Password User completely
removes such Images. No compensation will be paid with respect to the use of
User’s or Permitted Password User Images.
9. DISCLAIMER OF WARRANTY;
LIMITATION OF LIABILITY
USER AND PERMITTED PASSWORD USER EXPRESSLY ACKNOWLEDGES THAT SPEED
MARKETING® IS A NEW AND INNOVATIVE TECHNOLOGY. USER AND PERMITTED
PASSWORD USER EXPRESSLY ACKNOWLEDGE THAT THEIR USE OF SPEED MARKETING® IS AT
THEIR SOLE RISK AND NEITHER THE PROVIDER NOR ANY OF ITS AFFILIATES, EMPLOYEES
OR AGENTS OR THIRD PARTY LICENSORS WARRANT THAT THE USE OF SPEED MARKETING®
WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTY OR
REPRESENTATION AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SPEED
MARKETING® OR ITS ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE,
OR MERCHANDISE PROVIDED THROUGH SPEED MARKETING®.
SPEED MARKETING® IS
BEING PROVIDED ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, USAGE OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, COURSE OF DEALING, COURSE
OR PERFORMANCE OR SATISFACTORY QUALITY. THIS DISCLAIMER OF LIABILITY
APPLIES TO ANY DAMAGES OR INJURY, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES OR
INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OF
SERVICE, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS
OF ANY KIND OR NATURE, SPYWARE OF ANY KIND OR NATURE, COMMUNICATION LINE
FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE
OF MATERIAL, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR
UNDER ANY OTHER CAUSE OF ACTION. USER AND PERMITTED PASSWORD USER
SPECIFICALLY ACKNOWLEDGES THAT PROVIDER IS NOT LIABLE FOR THE DEFAMATORY,
OFFENSIVE OR ILLEGAL CONDUCT OF ANY USERS, PERMITTED PASSWORD USERS OR THIRD
PARTIES AND THAT THE RISK OF DAMAGE OR INJURY FROM THE FOREGOING RESTS ENTIRELY
WITH THE USER AND PERMITTED PASSWORD USER.
IN NO EVENT WILL
PROVIDER, ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, OR ANY
PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING SPEED
MARKETING® OR ANY SOFTWARE NECESSARY FOR ITS UTILIZATION BE LIABLE FOR ANY
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, LOST DATA,
THIRD PARTY CLAIMS, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED TO, THE USE OF OR
INABILITY TO USE SPEED MARKETING®, ANY COMPUTER SOFTWARE OR PROGRAMMING
CONNECTED WITH ITS USE, USE OR INABILITY TO USE ANY CONTENT ON ITS SITE OR ANY
THIRD PARTY SITE, ANY CONTENT ON ANY SITE WHETHER OR NOT CREATED BY SPEED
MARKETING®. THIS DISCLAIMER SHALL IN NO EVENT BE DEEMED LIMITED IN
ANY MANNER AND IS DEEMED TO INCLUDE ALL LIABILITY WHETHER OR NOT EXPRESSLY
STATED HEREIN.
IN NO EVENT WILL PROVIDER’S LIABILITY (INCLUDING THAT OF ITS
AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS) ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT EXCEED $25,000 EVEN
IF THE FOREGOING LIMITATION AND EXCLUSION ARE NOT ALLOWED TO THE FULLEST EXTENT
IN ANY APPLICABLE JURISDICTION; AND IN NO EVENT WILL PROVIDER, ITS AFFILIATES,
EMPLOYEES, AGENTS, SUPPLIERS OR THIRD PARTY PROVIDERS BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR LOST SAVINGS. THE
LIABILITIES LIMITED BY THIS SECTION SHALL APPLY (A) TO ANY AND ALL LIABILITIES
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MALFEASANCE; (B)
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT
LIABILITY, OR OTHERWISE; (C) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE
POSSIBILITY OF DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE;
AND (D) EVEN IF USER’S AND PERMITTED PASSWORD USER’S REMEDIES FAIL OF THEIR
ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE
PROVISIONS OF THIS SECTION, PROVIDER’S AND ITS AFFILIATES, EMPLOYEES, AGENTS
AND SUPPLIERS AND THIRD PARTY PROVIDERS’ LIABILITY WILL BE LIMITED TO THE
MAXIMUM EXTENT PERMISSIBLE THEREUNDER.
10. LINKS TO THIRD PARTY SITES
THE LINKS IN THIS AREA WILL LET USER AND PERMITTED PASSWORD USERS
LEAVE THE SPEED MARKETING® SITE. THE LINKED SITES ARE NOT UNDER THE
CONTROL OF PROVIDER AND SPEED MARKETING® IS NOT RESPONSIBLE FOR THE
CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY
CHANGES OR UPDATES TO SUCH SITES OR ANY VIRUSES, SPYWARE OR COOKIES CONTAINED
IN SAID SITE. PROVIDER IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF
TRANSMISSION RECEIVED FROM ANY LINKED SITE. PROVIDER THROUGH SPEED
MARKETING® IS PROVIDING THESE LINKS TO USER AND PERMITTED PASSWORD USER
ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT
BY PROVIDER OF THE SITE.
Provider is a distributor (and not a publisher) of content
supplied by third parties, Users and Permitted Password Users and has no
control over the editorial content. Any opinions, advice, statements, services,
offers, or other information or content expressed or made available by third
parties, including information providers, Users, Permitted Password Users, or
any other user of Speed Marketing® are those of the respective author(s) or
third party distributor(s) and not Provider. Neither Provider nor any
third-party provider of information guarantees the accuracy, completeness, or
usefulness of any content, nor its merchantability or fitness for any
particular purpose or that the User or the Permitted Password User has the
right to use the content without violating copyright, patent or other
applicable laws.
11. UNSOLICITED IDEA SUBMISSION POLICY
NEITHER PROVIDER NOR ANY OF ITS EMPLOYEES OR AFFILIATES ACCEPT OR
CONSIDER UNSOLICITED IDEAS, INCLUDING IDEAS FOR NEW ADVERTISING CAMPAIGNS, NEW
PROMOTIONS, NEW PRODUCTS OR TECHNOLOGIES, PROCESSES, MATERIALS, MARKETING PLANS
OR NEW PRODUCT NAMES. PLEASE DO NOT SEND ANY ORIGINAL CREATIVE ARTWORK,
SAMPLES, DEMOS, OR OTHER WORKS. THE SOLE PURPOSE OF THIS POLICY IS TO AVOID
POTENTIAL MISUNDERSTANDINGS OR DISPUTES WHEN PROVIDER’S PRODUCTS OR MARKETING
STRATEGIES MIGHT SEEM SIMILAR TO IDEAS SUBMITTED TO
PROVIDER. PROVIDER WILL NOT GUARANTEE THAT THE INFORMATION WILL BE
RETURNED OR THAT YOUR IDEAS OR MATERIALS WILL BE TREATED AS CONFIDENTIAL OR
PROPRIETARY.
12. MONITORING
Provider shall have the right, but not the obligation, to monitor
the content of Speed Marketing®, including chat rooms and forums, to
determine compliance with this Agreement and any operating rules established by
Provider, and to satisfy any law, regulation or authorized
government request. Provider shall have the right, in its sole discretion, to
edit, refuse to post or remove any material submitted to or posted on Speed
Marketing®. Without limiting the foregoing, Provider shall have the right
to remove any material that Provider, in its sole discretion, finds to be in
violation of the provisions hereof or otherwise objectionable.
13. INDEMNIFICATION
User and Permitted Password User shall indemnify, defend and hold
harmless Provider from and against, and in respect to, any and all claims,
actions, demands, losses, costs, expenses, obligations, liabilities, damages
whether direct or indirect, recoveries, trademark or patent infringements,
breach of privacy claims, deficiencies, and penalties, including reasonable
attorneys’ fees, court costs and arbitration costs, of whatsoever kind or
nature, that Provider shall incur or suffer, which arise out of, result from or
relate to any breach of, or violation of the Agreement and any and all
Ancillary Agreements or any third party claims for damages arising out of the direct
or indirect use, or failure to operate, of SPEED
MARKETING®. Provider shall have the option of defending itself and
with its own counsel and User and Permitted Password User shall be liable for
any and all fees, costs and expenses attributable to said defense, in addition
to the foregoing damages. User and Permitted Password User agree to
notify Provider of any suit or claim or potential suit or claim within two (2)
business days of receipt of or notice of same.
14. TERMINATION BY USER
User may terminate this
Agreement:
a)
By giving Provider a
written notice at any time and will be liable for all work fees incurred prior
to receipt of said notice. If User does not provide such a notice, it will be
obliged to pay all fees for work done and for other charges incurred. All
previously assessed fees and charges will be deemed earned in full; or
b)
Provider breaches this
Agreement or any Ancillary Agreement, obligation under this Agreement or
Ancillary Agreement, and such breach remains uncured for a period of thirty
(30) days after written notice thereof is sent to such other party; or
c)
Provider ceases to
conduct business or files for or has instituted against it any proceedings as
to its bankruptcy, insolvency, reorganization, liquidation, receivership or
dissolution or there is an assignment for the benefit of creditors
Upon termination of this
Speed Marketing® Agreement, all services to be provided from Provider will
cease and User’s access to Speed Marketing® services or web site will be
terminated. All provisions of Speed Marketing®/Terms of Use shall
survive the termination of this Agreement.
15. TERMINATION BY PROVIDER
Provider may terminate
this Agreement upon the occurrence of any of the following:
(a) User or Permitted Password User breaches this Agreement or any
Ancillary Agreement, obligation or warranty under this Agreement, and such
breach remains uncured for a period of thirty (30) days after written notice
thereof is sent to such other party; or
(b) User ceases to conduct business, or files for, or has instituted
against it, any proceedings as to its bankruptcy, insolvency, reorganization,
liquidation, receivership or dissolution or there is an assignment for the
benefit of creditors; or
(c) Provider forms the opinion, on reasonable grounds, that mutual
confidence and trust do not exist between both parties; or
(d) User fails to pay Provider in a timely fashion as provided in this
Agreement.
Upon
termination of the Speed Marketing® Agreement, all services to be provided from
Provider will cease and User’s and Permitted Password User’s access to Speed
Marketing® services or web site will be terminated. All provisions
of Speed Marketing®/Terms of Use shall survive the termination of this
Agreement.
16. MISCELLANEOUS
A.
Notices. Notices pursuant to this
Agreement or any Ancillary Agreement will be sent to the addresses below, or to
such others as either party may provide in writing. Such notices
will be deemed received at such addresses upon the earlier of (i) actual receipt
or (ii) delivery in person, by fax with written confirmation of receipt, or two
days after mailing by certified mail return receipt requested.
B.
For
the Provider:
i.
Bell
Litho, Inc.
ii.
370 Crossen Ave.
iii.
Elk
Grove Village, IL 60007
iv.
For
User and Permitted Password Users at the address provided in the Speed
Marketing® Agreement signed by User
C.
No
Waiver. Provider
will not be deemed to have waived any of its rights under this Agreement or any
Ancillary Agreement by lapse of time or by any statement or representation
other than (a) by an authorized representative, and (b) in an explicit written
waiver. No waiver of a breach of this Agreement or Ancillary
Agreement by Provider will constitute a waiver of any prior or subsequent
breach of this Agreement or Ancillary Agreement.
D.
Force
Majeure. To
the extent caused by force majeure, no delay, failure, or default will
constitute a breach of this Agreement.
E.
Assignment
and Successors. User
shall not assign its rights to any successor without the prior written approval
of Provider. This Agreement and all Ancillary Agreements will be
binding upon and inure to the benefit of the respective successors and assigns
of the parties.
F.
Severability. To the extent permitted by
applicable law, the parties hereby waive any provision of law that would render
any clause of this Agreement or Ancillary Agreement invalid or otherwise
unenforceable in any respect. In the event that a provision of this
Agreement or Ancillary Agreement is held to be invalid or otherwise
unenforceable, such provision will be interpreted to fulfill its intended
purpose to the maximum extent permitted by applicable law, and the remaining
provisions of this Agreement and Ancillary Agreements will continue in full
force and effect.
G.
Conflicts
among Attachments. In
the event of any conflict between the terms of this Agreement and those of any
attachment or Ancillary Agreement, the Speed Marketing® Agreement will govern.
H.
Execution
in Counterparts. This
Agreement may be executed in one or more counterparts. Each
counterpart will be an original, but all such counterparts will constitute a
single instrument.
I.
Construction. The parties agree that the
terms of this Agreement or any Ancillary Agreement will not be construed
against the party by reason of authorship.
J.
Amendment. This Agreement may be
modified at any time by Provider.
K. Entire Agreement. This Agreement and Ancillary
Agreements constitute the entire agreement between the parties. No
other agreements, representations, warranties or other matters, oral or written
purportedly agreed to or presented by or on behalf of Provider by any of its
employees or agents, or contained in any sales materials or brochures, shall be
deemed to bind the parties hereto with respect to the subject matter
hereof. User acknowledges that it is entering into this Agreement
and the Ancillary Agreements solely on the basis of the representations
contained herein.
L. For purposes of this Agreement, “Agreement
and Ancillary Agreements” shall refer to the Speed Marketing® Agreement
signed by User, this Terms of Use Agreement, as well as any amendments thereto.
All agreements shall be incorporated herein by reference.
M. Attorney Fees. Should either party hereto,
or any heir, personal representative, successor or assign of either party
hereto, resort to litigation or arbitration to enforce this Agreement, or any
Ancillary Agreements, User or Permitted Password User agrees to pay all of
Providers attorneys’ fees and costs, including arbitration and court costs,
regardless of whether the Provider shall prevail.
N. Injunctive Relief. The parties hereto agree that,
in the event of breach or threatened breach of this Agreement or any Ancillary
Agreements, the damage or imminent damage to the value and the goodwill of the
Provider’s business will be inestimable, and that therefore any remedy at law
or in damages shall be inadequate. Accordingly, the parties hereto
agree that the Provider shall be entitled to injunctive relief against User or
Permitted Password User in the event of any breach or threatened breach by User
or Permitted Password User, in addition to any other relief (including damages)
available to the Provider under this Agreement, any Ancillary Agreement, or
under law. Said remedy shall be in addition to any other remedies
provided in arbitration.
17. REQUEST
FOR FEE DETAILS & REMAINING WORK ESTIMATE
Upon request of User, Provider will provide a detailed accounting
of the work completed to date, all fees and costs incurred to date, as well as
an estimate of the work, fees and costs to complete the matter.
18. GOVERNING
LAW AND VENUE
This Agreement shall be governed by, enforced and construed under
the laws of the State of Illinois without regard to any provisions
relative to conflicts of law of the State of Illinois. The
venue for all litigation pertaining to this Agreement and any Ancillary
Agreement shall be Cook County, Illinois. Provider shall
be reimbursed for attorneys’ fees, costs and other expenses pertaining to said
litigation or arbitration and said attorneys’ fees, costs and other expenses
shall become a part of any judgment or decree from any court or
arbitration hearing.
19. ARBITRATION
ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY
ANCILLARY AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS RELATED TO THE USE
OF SPEED MARKETING®, WILL BE SUBMITTED TO MANDATORY, BINDING ARBITRATION UNDER
THE AUSPICES OF THE AMERICAN ARBITRATION ASSOCIATION (“ABA”), INI CHICAGO
METROPOLITAN AREA IN ILLINOIS, WITH USER OR PERMISSIBLE PASSWORD USER TO PAY
ALL FEES AND COSTS OF ARBITRATION INCURRED BY BOTH PARTIES. THIS SECTION DOES
NOT LIMIT THE RIGHT OF PROVIDER TO PURSUE TEMPORARY OR PERMANENT INJUNCTIVE
RELIEF OR ANCILLARY REMEDIES FROM A COURT OF COMPETENT JURISDICTION BEFORE,
AFTER OR DURING THE PENDENCY OF ANY ARBITRAATION, AND THE EXERCISE OF ANY SUCH
REMEDY DOES NOT WAIVE PROVIDER’S RIGHT TO ARBITRATION. JUDGMENT ON AN
ARBITRATION AWARD MAY BE ENTERED BY ANY COURT WITH COMPETENT JURISDICTION.